Barlow v. Social Security Administration, Commissioner of

Filing 13

MEMORANDUM AND ORDER - It is ordered that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision. Signed by District Judge John W. Lungstrum on 05/21/2018. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DAYNA LOUISE BARLOW,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
______________________________________)

CIVIL ACTION
No. 17-1111-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Acting Commissioner of Social Security
(hereinafter Commissioner) denying Disability Insurance Benefits (DIB) pursuant to
sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i) and 423
(hereinafter the Act). Finding no error, the court ORDERS that judgment shall be entered
pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s
final decision.
I.

Background
Plaintiff argues that the Administrative Law Judge (ALJ) erred in evaluating her

subjective statements. She seeks remand for further administrative proceedings.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he

findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual
findings are supported by substantial evidence in the record and whether he applied the
correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord,
White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than
a scintilla, but it is less than a preponderance; it is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen,
862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record,
nor try the issues de novo, nor substitute [the Court’s] judgment for the
[Commissioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless,
the determination whether substantial evidence supports the Commissioner’s decision is
not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

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The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 404.1520; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th
Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a
determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether she
has a severe impairment(s), and whether the severity of her impairment(s) meets or
equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404,
Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the
Commissioner assesses claimant’s residual functional capacity (RFC). 20 C.F.R.
§ 404.1520(e). This assessment is used at both step four and step five of the sequential
evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, considering the RFC assessed, claimant can perform
her past relevant work; and at step five whether, when also considering the vocational
factors of age, education, and work experience, claimant is able to perform other work in
the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
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economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court considers the issue as presented in Plaintiff’s Brief and finds no error in
the ALJ’s decision.
II.

Discussion
Plaintiff’s sole claim of error is that “[t]he ALJ’s analysis of Ms. Barlow’s

subjective statements was legally flawed and not supported by substantial evidence.” (Pl.
Br. 11) (bolding omitted). She argues that although the ALJ’s evaluation of her
subjective statements “certainly touched on several of the relevant factors” provided by
case law and the regulations, “nothing [in the decision] actually constituted a legally
sufficient explanation, supported by substantial evidence, indicating why the evidence as
applied to those factors supported discounting [Plaintiff’s] allegations regarding her
physical impairments during the period at issue.” Id. at 14 (citing Kepler v. Chater, 68
F.3d 387, 390-91 (10th Cir. 1995)). Plaintiff then explains her view of the evidence and
how it supports a finding that her allegations were credible. Id. at 15-17.
The Commissioner argues that the ALJ’s evaluation of Plaintiff’s subjective
symptoms was in accordance with the regulations and is supported by substantial
evidence. She argues that assessment of symptom allegations by ALJs “warrant
particular deference” because of their institutional advantage in such assessments.
(Comm’r Br. 6-7) (quoting White, 287 F.3d at 910). Finally, she explains how, in her
view, the record evidence supports the ALJ’s determination, id. at 8-13, and argues that
even if Plaintiff’s testimony is given greater weight, as the ALJ found she has not shown
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symptoms of disabling severity lasting twelve or more consecutive months as required for
a finding of disability. (Comm’r Br. 12).
A.

Legal Standard

The court’s review of an ALJ’s credibility determinations is deferential. They are
generally treated as binding on review. Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir.
1990); Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir. 1983). “Credibility
determinations are peculiarly the province of the finder of fact” and will not be
overturned when supported by substantial evidence. Wilson, 602 F.3d at 1144; accord
Hackett, 395 F.3d at 1173. Therefore, in reviewing the ALJ’s credibility determinations,
the court will usually defer to the ALJ on matters involving witness credibility. Glass v.
Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). “However, ‘[f]indings as to credibility
should be closely and affirmatively linked to substantial evidence and not just a
conclusion in the guise of findings.’” Wilson, 602 F.3d at 1144 (quoting Huston v.
Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988)); Hackett, 395 F.3d at 1173 (same).
The Tenth Circuit has explained the analysis for considering subjective testimony
regarding symptoms. Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993)
(dealing specifically with pain).
A claimant’s subjective allegation of pain is not sufficient in itself to
establish disability. Before the ALJ need even consider any subjective
evidence of pain, the claimant must first prove by objective medical
evidence the existence of a pain-producing impairment that could
reasonably be expected to produce the alleged disabling pain. This court
has stated: The framework for the proper analysis of Claimant’s evidence
of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We
must consider (1) whether Claimant established a pain-producing
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impairment by objective medical evidence; (2) if so, whether there is a
“loose nexus” between the proven impairment and the Claimant’s
subjective allegations of pain; and (3) if so, whether, considering all the
evidence, both objective and subjective, Claimant’s pain is in fact
disabling.
Thompson, 987 F.2d at 1488 (citations and quotation omitted).
In evaluating credibility, the court has recognized a non-exhaustive list of factors
which should be considered. Luna, 834 F.2d at 165-66; see also 20 C.F.R.
' 404.1529(c)(3). These factors include:
the levels of medication and their effectiveness, the extensiveness of the
attempts (medical or nonmedical) to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of credibility
that are peculiarly within the judgment of the ALJ, the motivation of and
relationship between the claimant and other witnesses, and the consistency
or compatibility of nonmedical testimony with objective medical evidence.
Kepler, 68 F.3d at 391 (quoting Thompson, 987 F.2d at 1489).
The Commissioner has promulgated regulations suggesting factors considered in
evaluating credibility which overlap and expand upon the factors stated by the court:
daily activities; location, duration, frequency, and intensity of symptoms; factors
precipitating and aggravating symptoms; type, dosage, effectiveness, and side effects of
medications taken to relieve symptoms; treatment for symptoms; measures plaintiff has
taken to relieve symptoms; and other factors concerning limitations or restrictions
resulting from symptoms. 20 C.F.R. ' 404.1529(c)(3)(i-vii). However, Kepler does not
require a formalistic factor-by-factor recitation of the evidence. So long as the ALJ sets
forth the specific evidence he relies on in evaluating the claimant’s credibility, the
dictates of Kepler are satisfied. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
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B.

The ALJ’s Analysis and Findings

The court begins, as it must, with the ALJ’s evaluation of Plaintiff’s allegations.
The possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s findings from being supported
by substantial evidence. [The court] may not displace the agency’s choice
between two fairly conflicting views, even though [it] would justifiably
have made a different choice had the matter been before it de novo.
Lax, 489 F.3d at 1084 (citations, quotations, and bracket omitted); see also, Consolo v.
Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966).
The ALJ summarized Plaintiff’s allegations of disabling symptoms resulting from
her impairments:
The claimant alleges that she was disabled, and unable to perform any work
activity from the alleged disability onset of December 18, 2011, through
January 12, 2014, the date before she returned to full-time, SGA
[(substantial gainful activity)] level work as an Engineering Associate with
the Kansas Department of Transportation. She alleges disabling
impairment secondary to back and neck pain and functional limitations
related to her cervical and lumbar spine degenerative disease, both before
and after surgeries. She alleges additional right lower extremity
impairment status-post (right) Achilles debridement surgery in 2013.
(R. 20) (emphasis added). Plaintiff acknowledges that she was seeking a closed period of
disability between December 18, 2011 and her return to full-time work on January 13,
2014. The ALJ found that Plaintiff’s allegations of disabling symptoms “are not entirely
credible for the reasons explained in this decision.” Id.
The ALJ provided a detailed summary of Plaintiff’s surgeries, including her
surgeries during the closed period at issue. (R. 20-24). He noted surgeries before she
quit working: that eight years earlier, Plaintiff had a cervical spine fusion surgery at the
C5-C6 level in 2003; and in April 2011 she had a lumbar microdisc surgery which
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improved with walking activities, leaving mild back pain and lower extremity symptoms,
but on follow-up she complained of increased pain in her cervical spine. Id. 20-21.
The ALJ noted surgeries after Plaintiff quit working. On December 28, 2011,
Plaintiff had a consultation regarding her cervical spine and had surgery on February 14,
2012 consisting of removal of the fusion hardware from her 2003 surgery, anterior
discectomy at C4-C5, and arthroplasty disk replacement at C5-C6. (R. 21); see also (R.
1289-90). She was doing well status-post, and in March 2012 complained of pain in her
low back and right leg associated with lumbar spine degeneration. Id. On May 25, 2012
she had discectomy with decompression and instrumentation at the L2-L3 and L3-L4
level of her lumbar spine. Id. at 21-22.
The ALJ discussed her follow-up:
Follow-up with Dr. Hisey on July 9, 2012 revealed the claimant was doing
‘a lot’ better, and had driven 5 hours without much difficulty. She noted
sitting ca[u]sed some pain in the hip, not the back and notwithstanding the
pain; she was up and walking daily. During the exam, Dr. Hisey noted the
claimant was able to sit comfortably and had no difficulty acquiring a full,
upright position when getting out of the chair. Her gait was balanced. She
had paravertebral muscles spasms and the spinous processes were tender in
the upper region, but the straight leg raises were normal bilaterally, with no
radicular issues. The lower extremity exam revealed decreased sensation of
the entire right leg to touch. The lumbar spine x-rays were unremarkable.
The claimant had been prescribed a back brace, and began physical therapy.
She was on pain medications and muscle relaxant Flexeril.
(R. 22).
The ALJ noted that Plaintiff did a follow-up on her cervical surgery on August 6,
2012, rated her neck pain at 2 out of 10 and arm pain at 1 out of 10, with 10 being the
worst. (R. 22). “She was released to resume all regular activities.” Id.

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Dr. Hisey noted the claimant was doing well following her lumbar spine
surgery when seen for follow-up in September 2012 except for increased
pain when medication was changed. Otherwise, the claimant was making
steady improvement and Dr. Hisey took her out of the back brace. The
follow-up x-rays in November 2012 showed the hardware remained in
excellent positon [sic] and after examining the claimant on November 12,
2012; Dr. Hisey noted the claimant could [“]lift as much weight as she
needed.”
Id. (emphasis added).
The ALJ noted that Plaintiff had Achilles surgery on March 27, 2013 and that six
weeks later she reported doing well. (R. 23). He noted that at her six-month checkup she
was no longer taking Mobic, swelling was decreased, she was climbing stairs and
walking, and was discharged with regard to her Achilles treatment. Id.
The ALJ noted Plaintiff had additional lumbar spinal decompression surgery at
L4-L5 on May 30, 2013, and two weeks post surgery “she was walking without a back
brace,” and “had some soreness in her back with over exertion, but otherwise was doing
well.” Id. (emphasis added).
The ALJ summarized Plaintiff’s function reports of her activities during the
relevant period:
On the adult function reports, covering the relevant period, the claimant
alleged she could sit, stand or walk no more [than] 1 to 1 ½ hours at one
time. She prepared simple meals, cleaned, mopped, and did laundry, with
limitation secondary to pain. She continued to drive, was fairly active with
weekly reading groups and Church activities. The claimant reported a 20
pound lifting limit and consistent with reports to her medical providers, she
indicated her pain symptoms increased when she over exerted her self
physically. The recent function reports at exhibit 11 and 12E from
December 26-27, 2013 indicate the claimant was pursuing a master's degree
in theology online. She used lumbar cushions when sitting and indicated
she had some chiropractic treatments for low back symptoms. The
undersigned notes these latter function reports were completed less than 129

months after her repeat lumbar spine surgery and less than 12-months after
her right Achilles tendon repair surgery.
(R.24) (citations omitted). The ALJ concluded his RFC assessment:
The claimant has had a series of surgeries over the span of several years,
which interestingly appear to have been timed in such a way that when she
made improvement in her physical ability, she quickly had the next surgery
scheduled. The record does show that she made steady, and expected
improvements and had good pain control with her non-narcotic pain
medication and muscle relaxers. Further evidence of her recovery is
indicated by her return to full-time work activity as an Engineering
Associate III with the Kansas Department of Transportation on January 13,
2014, the job that she held from February 23, 2009 through December 3,
2011, just before her alleged disability onset.
When reviewed in light of each instance of surgical repair and the amount
of time spent in recovery prior to the next surgery, there is nothing that
demonstrates that at any time, the claimant had listing level impairment or
that she had sustained functioning for a continuous 12-month period at less
than a sedentary exertional level.
In sum, after a thorough review of the evidence, the claimant’s allegations
and testimony, forms completed at the request of Social Security, the
objective medi[c]al findings, medical opinions, and other relevant evidence,
the undersigned finds the claimant capable of performing work consistent
with the residual functional capacity established in this decision
(R. 25-26).
C.

Analysis

In context, the ALJ’s rationale reveals that he found Plaintiff’s allegations “not
entirely credible” because she alleged that she was disabled because of pain and
functional limitations resulting from her degenerative disc disease “both before and after
surgeries,” but that allegation was inconsistent with her reports to her treating healthcare
providers and her adult function reports, which were also consistent with her return to

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work in January 2014 and with the opinion of the state agency medical consultant, Dr.
Timmerman.
The decision reveals the following history:
2003
April 2011
December 2011
February 2012
May 2012
March 2013
May 2013
January 2014

Cervical surgery
Lumbar surgery
Quit work
Cervical surgery
Lumbar surgery
Achilles surgery
Lumbar surgery
Return to work

The ALJ took great pains in the decision to demonstrate that Plaintiff recovered
and improved from each surgery before pursuing the next surgery in the series. Plaintiff
argues that the ALJ suggests that she “somehow scheduled the surgeries … simply to
coincide with her improvement following a previous surgery.” (Pl. Br. 15). The point of
the ALJ’s discussion is not that Plaintiff scheduled her surgeries to coincide with
improvement. Rather, the point is that Plaintiff did improve following each surgery, and,
as the ALJ found, “there is nothing that demonstrates that at any time, the claimant had
listing level impairment or that she had sustained functioning for a continuous 12-month
period at less than a sedentary exertional level.” (R. 25-26). The point is that absent a
12-month continuous period of disabling limitations, Plaintiff is not disabled within the
meaning of the Act and the regulations. According the ALJ’s credibility determination
due deference, Plaintiff has shown no error in the decision at issue.
IT IS THEREFORE ORDERED that judgment shall be entered pursuant to the
fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner’s final decision.

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Dated May 21, 2018, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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